53 Ga. App. 6 | Ga. Ct. App. | 1936
This case grew out of a collision between a public-carrier motor truck of the defendants, LaHatte, Loeb, and Jones, doing business under the name of the Chattanooga-Atlanta Motor Freight Line, and the plaintiff’s automobile, in which the plaintiff received certain personal injuries which he alleged were caused by the negligence of the driver of the defendants’ motor truck, “in failing to operate said truck on the right-hand side of the road, . . in failing, upon meeting the car in which petitioner was riding which was traveling in the opposite direction, to turn to the right of the center of the highway, which was a violation of state law,” and “in failing, in rounding the curve, to keep said truck as far to the right on the highway as was reasonably possible,” it being set up that in rounding a curve where the collision occurred the defendants’ truck was being operated on the left-hand side of the road, and continued to be so operated until it crashed into the plaintiff’s automobile which was being operated on its extreme right-hand side of the highway. The Bankers Indemnity Insurance Company, the insurance carrier, with whom the other defendants were bonded or insured as required by section 5 of the motor common-carrier act of 1929, was sued jointly with such other defendants. The defendants filed separate demurrers on the ground that no cause of action was stated, because the petition was multifarious and duplicitous in that there was a misjoinder of parties defendant and of causes of action, because there was no joint liability between the insurance company and the other defendants. The defendants moved also to strike the insurance company from the case, and to purge the pleadings of all reference to said company. Basing his ruling on authority of Laster v. Maryland Casualty Co., 46 Ga. App. 620 (168 S. E. 128), the judge
Section 5 of the motor common-carrier act of 1929 is identical with section 7 of the motor common-carrier act of 1931 (Code of 1933, § 68-612), except as to the amount of the bond or indemnity insurance referred to therein, and is as follows: “No certificate shall be issued or continued in operation unless the holder thereof shall give bond, with adequate security, for the protection, in case of passenger vehicles, of the passengers and baggage carried and of the public, against injury proximately caused by the negligence of such motor carriers, its servants or agents, and, in cases of vehicles transporting freight, to secure the owner or person entitled to recover therefor against loss or damage to such freight, for which the motor carrier may be legally liable, and for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants or agents. The commission shall approve, determine, and fix the amount of such bonds, in a sum of not more than $10,000 for any one accident, casualty, or mishap, and not more than $5000 for any one injured or damaged party or claimant, and shall prescribe the provisions and limitations thereof; and such bonds shall be for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby. The commission may, in its discretion, allow the holder of such certificate to file in lieu of such bond a policy of indemnity insurance in some indemnity-insurance company authorized to do business in the State of Georgia, which policy must substantially conform to all of the provisions hereof relating to bonds, and must likewise be approved by the commission. The commission shall have power to permit self-insurance in lieu of a bond or policy of indemnity insurance, whenever, in its opinion, the financial ability of the
The requirements of the corresponding provisions of these two acts being identical, and the purpose and object sought to be obtained by their enactment by the General Assembly being the same, that is, to protect passengers, shippers, and the public from damage to their property or themselves by motor carriers, the construction placed upon such provisions of the 1931 act by this court in the Laster case, supra, is direct authority and will be followed by this court in applying and construing such provisions of the 1929 act. In the Laster case, where section 7 of the act of 1931 was involved and applied, this court held: “This section provides first for the giving of a bond for the protection of passengers and their baggage, and of the public, against injury, proximately caused by the negligence of such motor common carrier, and next to secure the owner or person entitled to recover therefor against loss or damage to freight, and for the protection of the public. The section further prescribes that such bond shall be for the benefit of, and subject to suit or action thereon by any person who shall sustain actionable injury protected thereby, meaning personal injury, and also that such bond shall be for the benefit of and subject to suit or action thereon by any person who shall sustain an actionable loss of his baggage or property for which the motor company may be legally liable under the bond. The word 'injury'
It is true that as a general rule, under the Code of 1933, § 3-113, an action ex contractu can not be joined with an action ex delicto; but this is a mere rule of procedure which the legislature could change with reference to any class of cases that it so desired; and when that body passed the motor common-carrier act of 1929, it is manifest that it did intend to change this rule as to all cases that might arise tinder the provisions of section 5 of that act. This ease is brought under the provisions of that act; and therefore we are of the opinion that it was proper to join the insurance carrier as a party defendant with the tort-feasors. So decisions like Willis v. Galbreath v. 115 Ga. 793 (42 S. E. 81), and Cantrell v. National Surety Co., 46 Ga. App. 202 (167 S. E. 314), which were based on the general law and not on a special statute, are not applicable.
Counsel for the defendants state in their brief: “Had the Georgia motor-vehicle act of 1929 provided for ‘liability insurance’ instead of ‘indemnity insurance’ as was done in the Tennessee act (Western Automobile Casualty Co. v. Burnell, 17 Tenn. App. 687 (71 S. W. 2d, 474), we believe the decision in the Lasier case would be tenable.” Under the express provisions of section 5 of the act of 1929, the idemnity-insurance policy was given in lieu of the bond provided for therein; and we are of the opinion that under the terms of this section of said act a joint action is maintainable against- the motor common carrier and its insurance carrier on the policy of insurance given under this section, the same as though a bond had been given and the suit were on such bond. To hold otherwise would be to give to this statute a meaning and purpose different from that which the act itself expresses. It seems to be a well-settled principle of law that “Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute.” 9 C. J. 34, § 56. For cases involving similar statutes and reaching
It has been adjudicated that the petition set out a cause
It was not error for the court, in stating the contentions of the plaintiff, to charge the jury that this action “is based by the plaintiff upon the alleged negligence of the defendants; and in the plaintiff’s petition he specifies the particulars in which he says the defendants were negligent, in that he says that the defendants were negligent in failing to operate said truck on the right-hand -side of the road; in failing upon meeting the car in which the [plaintiff was] riding, which was traveling in the opposite direction, to turn to the right of the center of the highway, which was in violation, they say, of the law; and in failing, in rounding the curve, to keep said truck as far to the right of the highway as was reasonably safe.” The defendants contend that this charge amounted, in effect, to giving to the jury the portions of the automobile law of 1927, pp. 226, 237 (Code of 1933, § 68-303, c, e), which provide, in part, that “an operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center on the highway, so as to pass without interference,” and “An operator in rounding curves shall reduce speed and shall keep his vehicle as far to the' right on the highway as reasonably possible,” which portion is alleged to be void and unenforceable, because of the use therein of the words, “as far to the right on the highway as reasonably possible,” the same being too vague and indefinite to be a measure or standard of care and safety to be oh-
The judge charged the jury: “I do not intimate to you . . whether there is or is not any admission made by any of the parties in this suit as to any matter in controversy; but if you find from the evidence that there were any admissions made as to any matter or controversy, then I charge you that any admissions should be scanned by the jury with great care.” This was a proper charge to apply either to admissions made in a former suit by the plaintiff in this case, and which were introduced in evidence, or to admissions made to third persons outside of court. “After admissions in pleadings have been withdrawn by amendment, they may be introduced in evidence against the party making them. In such case it is not error to give to the jury the usual charge upon the subject of admissions.” Elliott v. Marshall, 179 Ga. 639 (176 S. E. 770).
The defendants contend that the court erred in failing to charge the jury, in effect, that the rules of the Public-Service Commission permitted the operation of a truck not exceeding eight feet in width, the width of 'defendants’ truck, and therefore that the mere operation of such truck on the highways of this State was not to be considered as negligence in itself, and thereby no blame should be placed upon the defendants solely because of the operation of a truck of such width; and further that, assuming that such truck of defendants did conform to the rules of the commission in regard to width, the driver thereof would be under no obligation to drive so far to the right of the road as to make its operation
The court did not err in refusing to charge the jury that “In determining where the center of the highway existed, you would look to the evidence and determine, if the evidence so discloses, the entire width of the highway from the edge of one shoulder to the edge of the other shoulder, in so far as such paved and unpaved portions could be used in the operation of vehicles thereon without danger, and the center of the highway would be the center of both the paved and unpaved portions, and would not necessarily be the center of the paved portion of the highway.” What is stated in this requested instruction was substantially covered in the general charge. The judge instructed the jury in the identical language of this requested charge, except that instead of stating that “the center of the highway would be the center of both the paved and unpaved portions, and would not necessarily be the center of the paved portion of the highway,” he stated that “the center of the highway would not necessarily be the center of the paved portion.”
The court was requested to charge the jury: “It is contended on behalf of the defendants . . that the plaintiff was guilty of negligence, and that such negligence was the sole cause of any injury which he may have sustained. In this connection, I charge you that if you should find from the evidence that the accident and injury was the result of the negligence of the plaintiff, . . it would be your duty to find a verdict in favor of the defendants.” This principle was sufficiently covered by the general instructions to the- jury, and the judge did not err in refusing the request. He substantially instructed the jury that the plaintiff could not recover if his injury was the result of his own negligence. The jury were instructed that no person can recover damages where the injury is caused by his own negligence or with his consent; that if the jury should find that plaintiff’s injury and
The court charged: “Our law further provides . . that if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendants’ negligence, lie would not be entitled to recover. And I charge you, in this connection, that the meaning of this provision of the law is, that, irrespective of whatever negligence the defendants may have been guilty of, the plaintiff would not be entitled to recover if by the exercise of ordinary care he could have avoided the consequences to himself of this negligence. As applicable to this case, this provision of the law means that if you should find from the evidence that the 'defendants’ truck was being operated with a portion thereof on the left of the center of the paved portion of the highway, and even if you should find from the evidence that such operation on the part of the defendants was negligence, yet if Mr. Walton by the exercise of ordinary care could have avoided the consequences to himself of that negligence — if it existed, then he would not be entitled to recover. . . However, the duty to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the injured party knew, or in the exercise of ordinary care ought to have known, of the negligence, or such negligence is apparent, or by the exercise of ordinary care should have been apparent — if negligence there was.” This charge substantially covered the requested instruction embodied in ground 9 of the motion for new trial. The contention of the defendants that the omission from this instruction of the language that if the jury “should find from the evidence that the defendants were guilty of negligence in some one or all of the particulars charged in the petition, and if the said Walton by the exercise of ordinary care could have avoided the consequences to himself of such negligence, if it existed, then said Walton could not recover in this case, and that the verdict should be for the defendants,” rendered said charge as given an insufficient compliance with the request, and an incorrect statement of ^the law as applied to this case, is not well founded. The court
The defendants requested the court to charge the jury that “the word 'avoid’ as used in the statute of the State of Georgia, which has been given you in charge, is of very broad and comprehensive meaning; and if you should find from the evidence that the said Walton did discover, or in the exercise of ordinary care could have discovered, that the truck of the defendants was being operated with a portion of the same to the left of the center line of the paved portion of the road, and after making such discovery or after he should have made such discovery, if you find that he should have, said Walton could have avoided the collision with the said truck, either by bringing his car to a standstill or by moving his car to the right side of the road, or otherwise avoiding the collision with the said truck, then Walton would not be entitled to recover, and your verdict should be for the defendants.” The judge instructed the jury “that the word 'avoid’ as used in the statute of Georgia has a broad and comprehensive meaning; and if you should find from the evidence that Mr. Walton did discover, or in the exercise of ordinary care should have discovered, that the truck of the defendant company was being operated with a portion of the same on the left of the center line of the paved portion of the road, and after making such discovery, or after he should, in the exercise of ordinary care, have made the discovery — if you find that he should have, — and that he could have avoided a collision with the truck by the exercise of ordinary care, that he would not be entitled to recover.” The defendants contend that the judge by omitting the language, “either by bringing his car to a standstill or moving his car to the right of the road or otherwise avoiding the collision with the said truck, then Walton would not be entitled to recover,” left out the most essential portion of the requested instruction, that is, the part which indicated the manner in which the plaintiff might have avoided the collision by the exercise of ordinary care on his part. To have instructed the jury in this language would have been virtually to charge them that the plaintiff’s failure so to do would have been a failure on his part
It was not error to refuse the request for instruction stated in ground 11. To have charged that there was a duty on the plaintiff to bring his automobile to a stop so as to avoid a collision, and that his failure so to do would preclude a recovery by him, would have been error, as this would have amounted to an instruction telling the jury what act constituted negligence. It is only where an act is negligence per se that a court should instruct the jury what constitutes negligence.
The requested instructions' stated in ground 12 in so far as essential, applicable, and proper, were covered by the general charge to the jury. As stated, this court has carefully considered the entire charge and as a whole it is full, comprehensive, and fair, and covers all of the contentions of the parties under the pleadings and the evidence.
The requested instruction stated in ground 13 was not a correct statement of the law, and in effect amounted to a request for the court to charge that it was not necessary that the driver of the defendants’ truck perform certain acts in operating such truck in the exercise of ordinary care on his part, which, as we have seen, would have been improper for the trial judge to do.
The court charged that “the plaintiff alleges that the defendants have injured and damaged him in the sum of money set forth in his petition. He alleges, in substance, that on or about the 25th day of June, 1931, the defendants operated a truck or trucks between Atlanta and Chattanooga, for the purpose of transporting freight for hire; that the individuals, in accordance with
The verdict being supported by and authorized under the evidence (see division 2 of this opinion), and no error of law appearing in any of the special assignments of error, the judge correctly overruled the motion for new trial.
